2019 QCCQ 1831, 2019 QCCQ 1831

R. c. Scolack 2019 QCCQ 1831 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL Criminal and Penal Division No.: 500-01-141869-161 DATE: January 9, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE JULIE RIENDEAU, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

RANDOLPH SCOLACK Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused was the partner of the complainant’s grandmother at the time of the events.

The complainant was then living with her grandmother. [ 2 ] The complainant sustains that the accused had inappropriate sexual behaviours towards her that started when she was around 4 years old and lasted until she was 6 years old. [ 3 ] The accused has to answer to one count of sexual assault, one count of sexual interference and one count of invitation to sexual touching, respectively under sections 271(1) ( a ), 151 and 152 of the Criminal Code ( Cr. C. ). [ 4 ] The accused did not testify.

He relies on what he suggests is proof of contamination of the complainant’s recollection of the events to submit that there is a reasonable doubt as to the proof of the essential elements of the offences he is accused of. I. QUESTION AT ISSUE [ 5 ] The matter at issue is whether the evidence, taken as a whole, demonstrates every essential element of the offences with which the accused is charged, beyond a reasonable doubt. Has the prosecution proved every element of the offences beyond a reasonable doubt? II. CONTEXT [ 6 ] The complainant is now 17.

She testified about events that started when she began to live with her grandmother, after she was taken away from her mother following a report to the Director of Youth Protection. [ 7 ] After revealing what happened with her grandmother’s partner to her mother, the complainant met with a police investigator. A videotaped statement was recorded. [ 8 ] Then she met with two other women, and essentially did not answer their questions.

The complainant explained that she did not answer them because her grandmother had told her that she did not want to have problems, and to therefore say no to any question the ladies would ask. [ 9 ] It was only a few years ago that the complainant realized the complete inappropriateness of the accused’s behaviour towards her and made the decision to go forward with the complaint. [ 10 ] Mainly, the complainant relates that the accused would ask her to kiss him with the tongue. Also, while taking a bath with her, he would use her feet to rub his genitals.

Sometimes, he would ask her to put hydrating cream or baby powder on his penis afterwards. When they were sitting on the couch, he would use her feet to rub his genitals, like in the bathtub. Also, he would take off her underwear and touch her with his hands, and once he put his penis on her vulva. That was under a blanket. Another time he asked her to put his penis in her mouth. [ 11 ] The accused urges the Court to be prudent with reference to what is stated by the complainant.

[ 12 ] He submits that there are numerous indicia that her recollection of the events was contaminated by other people’s interaction, namely the police investigator and her mother. He claims that it is consequently impossible to determine what facts are contaminated and what facts are not and that this must lead the Court to acquit him. [ 13 ] The accused however concedes that every essential element of the offences with which he is charged would be proven beyond a reasonable doubt should the Court not retain his argument. III.

ANALYSIS [ 14 ] The burden of proof rests on the prosecution and never shifts to the accused. It is up to the prosecution to prove every essential element of the offences with which the accused is charged, beyond a reasonable doubt.

It is up to the prosecution to prove the accused is guilty on the specific charges alleged, beyond a reasonable doubt. [ 15 ] With respect to assessment of the complainant’s testimony, the Court has to keep in mind the following principles. [ 16 ] First, the standard of proof required for conviction remains the same whether the complainant is an adult or a child. [1] [ 17 ] Secondly, every person giving testimony in court, of whatever age, is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding and ability to communicate. [2] [ 18 ] For instance, in general, where an adult is testifying as to events which occurred when he or she was a child, his or her credibility should be assessed according to criteria applicable as an adult witness. [3] [ 19 ] Finally, the situation is different when a person is testifying about events that occurred when he or she was a child.

In these circumstances, a witness may have forgotten details. Forgetting details related to a distant past will not necessarily affects the reliability of one’s testimony. When assessing contradictions, frailties and inconsistencies, the context must be taken into account. [4] [ 20 ] That being said, is the complainant’s testimony reliable to the point that it proves the offences beyond a reasonable doubt? [ 21 ] Let us first note that the complainant testified calmly, without animosity and in an understated manner. She was not vengeful and did not exaggerate at any time during her testimony.

She was obviously trying to answer the questions of both counsel to the best of her knowledge and to be as precise as possible. She is smart, which permitted her to give clear answers. [ 22 ] In the light of the above, the complainant’s credibility is not an issue. [ 23 ] That is why the only argument of the accused instead concerns her lack of reliability since there is, according to him, proof of contamination. [ 24 ] Essentially, the accused argues that the complainant’s account of the events as a child was contaminated by her mother as well as by the police investigator.

Her recollection of the events as a 17-year-old is also contaminated, not only because of the time that has gone by, but also because her recollection is based on thoughts that were already contaminated. [ 25 ] For the accused, proof of contamination resides in the fact that the complainant retracted herself in her testimony with regard to what he sees are major components of her account of the events that allegedly took place when she was 6 ½ years old. [ 26 ] For instance, after saying in her videotaped statement that the accused put his penis “in” her vulva ( a mis son pénis dans ma vulve ), the complainant corrected in her testimony the fact that it was “on” her vulva. [ 27 ] Another clear example of contamination for him is the fact that she stated in her videotaped statement that she was asked multiple times to kiss his penis, while she indicated in her testimony it only happened once.

Also, with regard to this last point, the first and only time she gave specific details was in cross examination, even though it would have been possible for her to explain how it happened to the police investigator. [ 28 ] During cross examination, she also corrected the fact the accused touched her genitals with his hands while they were in the bathtub.

After refreshing her memory with the preliminary inquiry stenographic notes, she said that it did not happen. [ 29 ] As to how the complainant’s version of the events came to be contaminated by her mother and the investigator, the accused suggests it is the consequence of the complainant’s interaction with both of them. [ 30 ] Indeed, for the accused, it is likely that the complainant was influenced by her mother in her perception of the events when she first told her that something happened with the accused.

In fact, the accused brings the attention of the Court to two sequences in the video where one could deduct that the complainant may have had her mother in mind when answering the questions. [ 31 ] On the same subject, the accused invites the Court to suspect that the complainant’s mother influenced her during the encounters she had with her prior to her videotaped statement.

He submits that the fact that the conversation with her mother prior to her first statement to the police lasted 7 to 10 minutes, according to the complainant, combined with the fact that she does not recall any details, should be sufficient to see this as possible contamination. [ 32 ] For the accused, it is also unlikely that the complainant never again talked to her mother about the events after meeting with the police, as she sustained.

He consequently asks the Court to infer that the complainant’s recollection of the events was also contaminated following further discussions with her mother. [ 33 ] On the influence the police investigator may have had on the complainant’s version of the events, the accused submitted the following.

[ 34 ] First, he draws attention to what he sees as a very suggestive manner of questioning a witness, as opposed to a technique that would lead an investigator to ask open-ended questions. [ 35 ] For instance, the investigator asked “Can you tell me something about the game you play you don’t like?”, “Can you show me the game you showed to your mother Nathalie?”, “Can you tell me something about the lover’s game?”, “Tell me about the game with the legs”, “Your mother told me you told her about a black cage. Tell me about that. Tell me about a black cage”, “Tell me things that (

I) should know, when you’re taking your bath, with baby powder?” [ 36 ] For the accused, all these questions put words in the complainant’s mouth. The investigator put forward subjects before the complainant had even talked about them.

It is implausible that she was not influenced by such questioning techniques. [ 37 ] Second, the accused suggests that the way the investigator referred to the complainant’s mother may have influenced what she said. [ 38 ] So, is the complainant reliable? [ 39 ] Let us begin with the contamination that could have occurred in the context of the videotaped statement. [ 40 ] The accused is right in saying that the investigator asked questions on specific subjects.

He is also correct in saying that the investigator referred to the complainant’s mother several times during the interview. [ 41 ] However, the Court does not perceive at any time that the purpose of this was to influence the child other than to bring her to say what happened with the accused, or tell the truth. [ 42 ] Here, viewing the videotaped statement is enlightening. [ 43 ] Indeed, it is obvious to an observer that, from a curious and talkative child when the video starts, the complainant withdraws into herself as soon as the investigator asks her to tell him what she recently told her mother about a game she plays.

She suddenly becomes silent, and turns around in her chair. She starts looking at the wall, or down to the floor, or hiding her face. It is obvious that the complainant is reluctant to tell him about the game. [ 44 ] These circumstances are what brought the investigator to tell the complainant that her mother and grandmother agreed that she should tell him about the game if she wanted to. [ 45 ] It is also in that context that the investigator brought certain subjects to the complainant’s attention. [ 46 ] At no time did the investigator put words in the complainant’s mouth.

She was the one who spontaneously gave details and explained what happened at length, once she opened up. Her story as a 6 ½-year-old child was consistent, logical, coherent, and plausible. It is unlikely that a 6 ½-year-old would give such an account of events, if what she described had not happened. [ 47 ] Undeniably, she gave multiple details about kissing with the tongue when her grandmother was not there, about what happened in the bathtub, about putting her mouth on the accused’s penis, and about what happened on the couch and when her grandmother could not see.

After, she explained that the accused told her that he would be put in a black cage if she told anybody what was happening with the accused, and that the police would put him in a cage with monsters.

She also candidly concluded that the accused would not do what he was doing again since her mother and grandmother told him to stop. [ 48 ] The accused advances that the name of the game called “ le jeu des amoureux ” was probably introduced by the investigator, since he is the one who first used these words during the meeting. [ 49 ] For the Court, there is no need to determine whether or not this is the case because what is of importance here concerns the assessment of evidence related to the behaviour of the accused.

As for this assessment, one thing is clear: the complainant knew exactly what the investigator was referring to when he used these words, and she explained clearly what the game was. [ 50 ] About the complainant’s account of the events, it is useful to recall that the investigator told her that he wanted to hear what she had to say, not what her grandmother or her mother have to say. [ 51 ] As for the reliability of what the complainant said as a 6 ½-year-old, it is important to recall that she remembers, as a 17- yearold, most of what happened with the accused, and that she was able to relate the events with even more details than when she was 6 ½-years-old. [ 52 ] For example, she remembers the taste of cigarette in the accused’s mouth when he was kissing her, the presence of pre- ejaculatory fluid on the accused’s penis when he asked her to put it in her mouth, the fact that she put her teeth on his penis, justifying his asking her to stop.

She gave details about where her grandmother was when the accused was acting as he was. She explained when she was taking her bath, after supper, but before watching the television. [ 53 ] In her testimony she also described generally with ease, but for a few details where she was uncertain, the apartments where she lived with her grandmother and the accused. She can describe the furniture and say where it was in the second apartment. The fact that she has a blurred memory with regard to some pieces of furniture in the first apartment is without real incidence as they are collateral details.

She remembers moving from one apartment to another. [ 54 ] Reliability has to do with the accuracy of a witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately observe, recall and recount. [5] [ 55 ] Here, the Court notes that the complainant’s account of the events is detailed. She showed a great capacity to observe, recall and recount. It was the same for the 6 ½-year-old who met with the investigator. She can also remember many events, details and

situations that occurred before, during and after the time she lived with her grandmother.

For instance, she recalls the day she was taken away from her mother by the Director of Youth Protection, a little broom her mother had brought her the day she disclosed the accused’s behavior towards her and moments she would spent with her father during these years. [ 56 ] Does the fact that the complainant corrected herself on the number of times oral sex occurred with the accused, or on the fact that the accused put his penis on her vulva and not in her vulva, or on the fact that there was no touching of her genitals in the bathtub, lower her reliability to a point that it becomes difficult to really know what happened? [ 57 ] With reference to oral sex, even if there is a contradiction between what she said in her videotaped statement and what she said in her testimony, the Court retains that the complainant is reliable. [ 58 ] The fact that she immediately corrected herself as the viewing of the video in the courtroom ended is, for the Court, an indicium of reliability.

Other indicia are found in the details she gave, notably the place in the apartment where it happened (in the accused’s bedroom), the moment it happened (the accused asked her to come into his room while she was passing by), and the duration and the comments on the fellatio itself, as already related above. [ 59 ] Even if the contradiction is not minor, the Court finds that the words used by the complainant in her videotaped statement are also evidence of reliability ( il a dit de mettre ma bouche sur son oui-oui, je voulais pas le faire, je l’ai fait, ensuite je voulais pas le faire, il fallait que je rouvre ma bouche et que je mette son oui-oui dans ma bouche ). [ 60 ] As to the fact the accused put his penis on her vulva instead of in her vulva, the complainant mentioned that as a 6 ½-year-old, she was mistaken on the meaning of these two words.

She however described with details, in the video, the circumstances in which it happened: the accused was crossing his legs on her, he was getting undressed on the couch, he wanted her to take off her underwear, he was touching her with his hands and with his penis, and he did not want her to put her underwear back on.

Also, as a 17-year-old, the complainant clearly recollects the events. [ 61 ] Finally, as to the complainant’s answer that the accused never touched her genitals in the bathtub, the Court finds that it is her intent not to induce the Court in error that made her say so since she had no recollection of this event.

In fact, the complainant clearly explained that she prefers to say it never happened because she is not 100% sure, not because it never did. [ 62 ] In the circumstances, to conclude that the complainant is not reliable because of the discrepancies mentioned above would be to completely disregard the entirety of her testimony.

For the Court, these discrepancies do not affect the complainant’s general reliability in light of the whole of the evidence. [ 63 ] As mentioned earlier, another argument submitted by the accused with regard to the complainant’s reliability is the possibility that she unconsciously integrated as her own memory what her mother would have told her before she met with the investigator. [ 64 ] For the Court, retaining this assertion would rest on conjectures as no evidence supports it. [ 65 ] First, it is unlikely the complainant would remember so many details about the events, as illustrated above, if the source of her memory was her mother. [ 66 ] Also, the complainant firmly maintained that at no time did her mother tell her what to say.

Even if she does not remember the details of the conversation she had with her mother when she revealed the story about the accused, the way she described it suggests that it was mostly her telling and showing what was going on with the accused. [ 67 ] With regard to a discussion with her mother concerning the events after the videotaped statement – a discussion that allegedly influenced the complainant’s perception of the events, the accused’s allegation is purely hypothetical and has no factual basis.

Saying that it is implausible that the complainant never had any discussion afterwards regarding the events is insufficient as there is no evidence at all suggesting that there was such a discussion.

Moreover, the complainant’s affirmation that she never talked with her mother about the events again after her videotaped statement seems reasonable in the context where the complainant was not close to her mother and rarely saw her mother after she was taken away from her by the Director of Youth Protection. [ 68 ] On another note, the fact that the complainant went to the police many years after her videotaped statement has no impact on her reliability.

Indeed, there is no rule as to how and when inappropriate sexual behaviour has to be disclosed, or as to when a complainant may reactivate or go forward with a complaint that has already been filed. [ 69 ] In the circumstances of this case, the complainant’s explanations as to why she denied everything after her videotaped statement, knowing it would cause problems with her main caregivers, are believable.

Taking into account the specificities of her family context, and that she had no support, it is understandable and also believable that the complaint was only reactivated when the complainant realized, when she was more mature, that the accused’s behaviour was inacceptable.

One must not forget that she explained that she mostly had to rely on herself if she wanted to go forward with the complaint since no one really wanted to get involved. [ 70 ] In conclusion, the Court finds the complainant credible and reliable despite some mistakes, contradictions or frailties in her evidence. [ 71 ] In consequence, the evidence demonstrates without ambiguity that the accused committed the offences he is charged with. IV.

CONCLUSION [ 72 ] In view of these circumstances, the Court finds that the evidence, taken as a whole, demonstrates beyond a reasonable doubt, every essential element of the offences with which the accused is charged. The prosecution proved every element of the offences beyond a reasonable doubt.

[ 73 ] However, the offence of sexual interference is included in the offence of sexual assault, as agreed by both parties in the event the Court was to conclude as it has in the previous paragraph. FOR THESE REASONS, THE COURT: DECLARES the accused guilty on counts 1 and 3; ORDERS a stay of proceedings on count 2. __________________________________ JULIE RIENDEAU, J.C.Q. Christine Desjarlais Attorney for the prosecution Hussein Hassan Attorney for the defence Date of hearing: December 17, 18 and 19, 2018.